Agreement and Conditions of the Contract

An
Owner-Contractor Agreement and General Conditions of the Contract are
used on almost all significant construction contracts. These specify
the fundamental terms of the contract, which are not repeated in the
specifications. The most commonly used forms of Agreement or General
Conditions are preprinted, copyrighted, standard forms published by
construction industry associations. Agreements and General Conditions
are published as either a single document or as two documents in a
coordinated set. When published as a set, both documents must be used
for complete contractual terms. Many Owners have their own documents
they require design professionals to include in the contract
documents.

Although
specifiers are not usually responsible for preparing these documents,
they must know what is in them, as the terms of both the Agreement and
the General Conditions could affect the content or terms embodied in
the specifications. In particular, preparing the specifications
assuming the wrong contractual relationships could have significant
cost consequences for the Owner. As in many other aspects of life,
making assumptions here is often dangerous.

If the contract
documents will be based on a standard form or forms, it's usually a
simple matter to get a copy of it. If the Owner makes modifications to
them, you'll need to get a copy of the modifications from the Owner or
his legal counsel — these are usually called "Supplementary
Conditions" but Owners have a wide variety of names for them.
Sometimes design professionals maintain custom General and/or
Supplementary Conditions for repeat Owners, but design professionals
are usually advised to seek legal counsel before initiating any
modifications.

Assembling the Agreement and Conditions of the Contract

Even though
specifiers are not responsible for choosing standard forms or for
preparing modifications to them, specifiers are very often required to
assemble these documents into the Project Manual. Unless you find that
someone else will be doing that, you will need to get information from
the Owner or his legal counsel on what to do.

First find out whether you are expected to do this.

If so, you need to get specific, detailed information on what to do.

If not, you
still need to get a copy. If you can't, try to find out what the
fundamental terms of the contract are, so you can coordinate your
specs. (There is really no reason an Owner should refuse to provide
you a copy — except that his lawyers might not have finished it yet.)

The best way to get the information you need is to use
AIA Document G612
- Owner's Instructions to the Architect Regarding the Construction
Contract.
This is a detailed checklist covering general project delivery issues,
construction administration, form of contracts, bidding requirements,
owner-furnished items, separate contracts, payments to Contractor,
retainage, and insurance.

The normal way
to use AIA G612 is to send it to the Owner as a formal request for
information. A sample cover letter is included, which is itself
instructive. However, AIA G612 is such a good checklist that you
should use it whether you are assembling the Agreement and Conditions
of the Contract documents or not, to reassure yourself that you have
asked all the relevant questions.

Coordinating the Specifications with the Conditions of the Contract

SpecLink's
master text is carefully written to avoid the necessity of tailoring
the language to any particular general conditions. However, it does
assume that the general conditions will be more or less like AIA A201
or EJCDC C-700 (see below). The basic terms are:

The Owner has a contract with a single prime Contractor.

The Design
Professional will be providing construction administration that
includes site observation and approval of Applications for Payment.

If your project
conditions or contractual relationships differ, changes may be
necessary to the specification text. Multiple prime contracts will not
normally require much more than an enumeration of the contracts and a
description of their scope.

Note: The above
discussion refers to the SpecLink construction specifications. The
Design Criteria specifications are entirely different; for
Design-Build, the procurement and contracting documents assume a
fixed-price, best value competitively bid contract with terms based on
DBIA documents.